# C_2019148EN.01003001.xml

| 29.4.2019 | EN | Official Journal of the European Union | C 148/30 |
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29.4.2019

EN

Official Journal of the European Union

C 148/30

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Action brought on 22 February 2019 — European Commission v Republic of Austria

(Case C-161/19)

(2019/C 148/28)

Language of the case: German

Parties

Applicant: European Commission (represented by: C. Hermes and M. Noll-Ehlers, acting as Agents)

Defendant: Republic of Austria

Form of order sought

The applicant claims that the Court should:

| — | declare that, by authorising the springtime hunting of woodcocks in the Land of Lower Austria, the Republic of Austria has failed to fulfil its obligations under Article 7(4) of Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds; (1) |
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declare that, by authorising the springtime hunting of woodcocks in the Land of Lower Austria, the Republic of Austria has failed to fulfil its obligations under Article 7(4) of Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds; (1)

| — | order the Republic of Austria to pay the costs of the proceedings. |
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order the Republic of Austria to pay the costs of the proceedings.

Pleas in law and main arguments

The present action is brought against the authorisation of springtime hunting of woodcocks (Scolopax rusticola) in Lower Austria. Male woodcocks may be hunted during courtship in that Land between 1 March and 15 April, and a maximum number of 1410 (since February 2017: 759) woodcocks may be killed.

The Commission claims that the legislation in question infringes the prohibition of springtime hunting in Article 7(4) of Directive 2009/147.

The Republic of Austria contends that the legislation is covered by the derogation in Article 9(1)(c) of Directive 2009/147. Under that provision, Member States may derogate inter alia from Article 7(4) of the directive, where there is no other satisfactory solution, in order to permit, under strictly supervised conditions and on a selective basis, the capture, keeping or other judicious use of certain birds in small numbers. In accordance with the settled case-law of the Court of Justice, it is for the Member States to establish that the conditions for its application are met.

The Commission claims that the Republic of Austria has neither shown that there is no other satisfactory solution within the meaning of the introductory sentence of Article 9(1) nor established that the authorised maximum number of specimens that may be killed meets the requirement of ‘small numbers’ in Article 9(1)(c) of the directive. Autumn hunting appears to be a satisfactory alternative, as non-negligible numbers of woodcocks are also present in the Lower Austrian hunting areas in autumn. The Republic of Austria has not provided any convincing evidence for its assertion that springtime hunting is more considerate towards the population of woodcocks than autumn hunting. In addition, the calculation of the ‘small numbers’ is incorrect, since the Austrian figures are based on the wrong reference population.

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(1)  OJ 2010 L 20, p. 7.

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